Sullivan v. Board of Equalization, Denver County, 98CA0063

• Decision Date: 10 December 1998
• Docket Number: No. 98CA0063,98CA0063
• Citation: 971 P.2d 675
• Parties: 98 CJ C.A.R. 6134 James M. SULLIVAN, Petitioner-Appellant, v. BOARD OF EQUALIZATION OF DENVER COUNTY, Respondent-Appellee, and the Colorado Board of Assessment Appeals, Appellee. . V
• Court: Colorado Court of Appeals

Page 675

971 P.2d 675

98 CJ C.A.R. 6134

James M. SULLIVAN, Petitioner-Appellant, v. BOARD OF EQUALIZATION OF DENVER COUNTY, Respondent-Appellee, and the Colorado Board of Assessment Appeals, Appellee.

No. 98CA0063.

Colorado Court of Appeals,

Div. V.

Dec. 10, 1998.

Gelt, Fleishman & Sterling, P.C., James P. Gregory, Eric H. Sahl, Denver, Colorado, for Petitioner-Appellant.

Daniel E. Muse, City Attorney, Alice J. Major, Assistant City Attorney, Denver, Colorado, for Respondent-Appellee.

No Appearance for Appellee.

Opinion by Judge MARQUEZ.

In this property tax case, petitioner, James M. Sullivan (taxpayer), appeals from an order of the Board of Assessment Appeals (BAA) which denied his challenge to the non-residential classification assigned by respondent, the Denver County Board of Equalization (BOE), for the 1996 tax year to certain vacant land he owned. We affirm.

The facts pertinent to the classification issues are not in dispute. The subject property is a vacant parcel of land located adjacent to another parcel of land that contains taxpayer's residence.

Although there is no dwelling unit on the subject parcel, it was actually used by taxpayer in conjunction with his residence, as part of his backyard. The subject parcel is also zoned for residential use and has certain site improvements and amenities, such as a sprinkler system and landscaping. However on the applicable 1996 assessment date, the ownership of the subject parcel was solely in taxpayer's name, while the ownership of the adjacent parcel with his residence was solely in the name of taxpayer's wife.

Following a hearing, the BAA rejected taxpayer's arguments and upheld the BOE's non-residential classification and assessment of the subject parcel for the 1996 tax year. Specifically, while the BAA acknowledged taxpayer's "habitation" on the adjacent parcel, it found the lack of "common ownership" between the subject vacant parcel and the adjacent improved parcel to be controlling as to the classification issue. In short, because the contiguous parcels were "separately owned" on the pertinent assessment date, the BAA found "no basis" for granting the lower assessment rate.

On appeal, taxpayer contends that the BAA erred in so ruling, asserting that the subject parcel qualified for residential classification as a matter of law under these circumstances. We disagree.

Under the Colorado Constitution, "residential real property," which includes "all residential dwelling units and the land, as defined by law, on which such units are located," is valued for assessment at a lower rate than other taxable property. Colo. Const. art. X, § 3(1)(b). The term "residential real property" is further defined in the statutory scheme governing property taxation as "residential land and residential improvements." Section 39-1-102(14.5), C.R.S.1998.

Pursuant to § 39-1-102(14.4), C.R.S.1998, the term "residential land" is defined, in pertinent part, as "a parcel or contiguous parcels of land under common ownership upon which residential improvements are located and which is used as a unit in conjunction with the residential improvements located thereon."

Further, the term "residential improvements" is statutorily defined, in pertinent part, as "a building, or that portion of a building, designed for use predominantly...